from the copyright-as-censorship dept

Remember when a copyright maximalist think tank guy insisted that copyright would never, ever be used for censorship? Well, about that...

Earlier this year, we wrote about a crazy lawsuit filed by Gene Kelly's widow, after finding out that a college professor named Kelli Marshall was working on a book collecting interviews with Gene Kelly. Marshall and her publisher reached out to a number of people associated with those interviews to clear any legitimate copyright claims (interview collection books are pretty common, and the copyright issue rarely gets in the way). Kelly's widow, Patricia Ward Kelly, claimed that she held the copyright on all of Gene Kelly's interviews, and sued Marshall for infringement. This was crazy for a variety of reasons, starting with the fact that the person being interviewed very rarely holds a copyright in the words they said (and Kelly's widow made a mad dash to the copyright office to try to register these interviews right before suing). There's also the whole fair use thing.

A couple months back, the court tossed out the lawsuit -- but not over the issues mentioned above. Instead, the court noted (correctly) that the issue wasn't "ripe" for court, because Marshall hadn't even written the book yet, so it's crazy to claim that it's infringing when we don't even know what's in it. So that's a victory, but not a great one for Marshall, since it likely means she's still facing a lawsuit once the book is done. And based on that Marshall has announced that she will no longer write the book.

Despite the judge’s ruling in our favor, I have decided not to move forward with the book. After much frustration and deliberation, I realize I have neither the time nor the resources to endure another potential lawsuit. I regret this for my research. I regret this for academia and the university press. But mostly, I regret this for the fans of Gene Kelly.

I can totally understand why she would do this. Yes, you could argue that she could file a lawsuit for declaratory judgment of non-infringement -- and probably win, but what a hassle that would be (not to mention an expensive hassle). Instead, we get yet another example of a completely bullshit copyright claim being used to censor -- and in this case, an academic book.

Reader Comments

Just goes to show why the copyright term length needs to be shortened significantly. Not much need for a creator to be rewarded for his works after he's dead...other than to continue the cash cow of easy money for descendants and studios.

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This "plus X years" part of copyright never made any sense to me. I mean sure the heirs will get any money made but not used from the dead ones but if they want to keep generating money they'll have to put the money and the properties to use. Copyright instead lets people earn money while doing absolutely nothing. This is kind of wrong even if the creator is alive but afte death it's a complete travesty.

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plus x years most likely has grown because corporations are immortal. They get copyrights assigned to them and want to hold them forever, trying to find new ways to cash in.

Look around (at least on US TV screens)Lethal Weapon (tv series from movie)MacGuyver (rebooted tv series removing much of his pacifism)

At some point it became I made something and it should support my family. Rather than invest and create trusts, copyright is left and after the gatekeeper cuts a tiny trickle flows... and if someone else does something it might upset the trickle... so attack early and often.

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Things made by corporations, or more commonly for those corporations as work-for-hire, actually get a flat copyright duration of 95 years.

My guess is that the authors of the Berne Convention — which introduced Life + 50 — figured that copyright should last as long as the author lives, since they couldn't see how anyone could benefit from expiration. But that introduced an unfortunate incentive to murder authors to free their works, so they padded it out a lot.

Of course, the life+years approach also introduces other incentives, like authors who rest on their laurels and produce less art (see Giuseppe Verdi for one notable author who lived both before and after the transition) and parasitic estates which suck rents from the economy and produce censorship in exchange.

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True what good is it for you if you're in the grave.

By the way if I carry this logic further shouldn't all of a persons property be distributed to the public upon death? I mean why should a dead persons heirs get all that money and property? They didn't earn it.

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Is the other 'property' one or more government granted monopolies (theoretically) granted to you to provide incentive to create more, with the (also currently theoretical) goal of enriching not yourself but the public in the end?

This is one of those problems that crop up with the idea that copyright is 'just another property right'. The idea of 'Well I can pass down my money and my house/car/land to my kids, why do I have to give up my copyrights?' starts being kicked around, despite the fact that the two types of 'property' are significantly different, legally and practically.

It also has the potential to lead to all sorts of shenanigans such as legally eternal copyrights, instead of the functionally eternal duration we currently 'enjoy', since if you're going to treat it just like any other property right then it makes no sense to give it an 'expiration' date when other property rights don't have the same.

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The fact that copyright doesn't instantly die with the owner is a reasonable one that's based in some logic. Fixed periods with renewals would make far more sense, but I can see the argument for them continuing for a short time after death.

The idea that copyright is fixed for a definitive period of decades afterwards is not logical, especially when that period is so long that nobody alive when the work was created will ever see it enter the public domain.

Rule of thumb - When any part of a cartel tells you X will never happen, they are already laying the ground work for it.

So copyright, there isn't anything it can't do.It strips the public domain.It removes academic work.It keeps people from learning about someone important in history.It locks away many interviews with questionable copyrights filed.It makes a widow feel like she is protecting the image, at the same time killing off any interest in a star of a bygone age drying up her income from it.One has to think selling his image for a soda commercial didn't bring in that much as the public hasn't cared that much for resurrected celebrities hocking crap.

Somewhere is a lawyer telling the widow how he saved her from the poor house by killing the book... and very soon people will be saying Gene Kelly, wasn't she on an early season of American Idol?

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Singers crucified Spotify for not paying them enough, yet when Spotify said wait here are the numbers we sent the labels on your behalf... no singer said wait my sides screwing me?

Tattoo artists are suing video game makers because they put in a player who has ink from them.

Voice actors are on strike against video games because they are demanding lifetime royalties... something programmers don't get.

We have reached a point where those who create things automatically expect that each creation will keep paying forever. All of the money is hidden behind the scenes & no one questions the guys wearing the Armani suits who sit behind a desk and somehow make more than everyone else. Copyright has created a broken understanding of how reality actually is. Stars bitching out YouTube for making any profit, ignoring all of the costs in creating and running the platform the artist gets to use for free & pays them. The cartels like to keep stars focused on YouTube rather than have to have their contracts & special terms brought into the light of day where people might question a cut of the YouTube payments going to cover the breakage of vinyl albums or recouping shooting the video 5 times over.

The game is a plate of 12 cookies, the cartel grabs 11 and tells you this other guy is gonna steal your cookie. They are willing to spend 1.5 cookies to get law makers to go along with the lie & threaten new laws to make there be more cookies on the plate... but the cartels always make sure artists only ever see 1 cookie & the boogeyman who is going to steal it from them.

What is really sad..

"Who's Gene Kelly?" asked just about everyone born after 1990. A new book about him might not have made many new fans but there is a chance old wida' Kelly could have made a few bucks on secondary sales after some millenial saw this book on a coffee table and went out and bought some of his works on DVD, etc. Way to shoot yourself in the foot.

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The Way of the Bimbo

Lying, cheating, stealing to wring every last drop from the estate. Patricia's taken this common trophy-widow game to a new low [resistance is futile - pun must be written]...she's dancing on Gene's grave.

I suspect there's a ton of great art and literature that simply isn't even considered because of the morass of copyright issues it would entail. The very existence of copyright induces censorship, esp. when it lasts for a whole century.

Gene who?

I'm just glad that Gene Kelly's estate, and not some despicable moocher, is profiting from these interviews. I'm sure he never would have given them if he didn't feel secure in knowing that his great grand children would be earning a reliable and secure income from the properly licensed reproduction of those interviews, which are in such high demand that the first books using them were being written a mere twenty years after the creator's death.

Without Life+70 copyright, interviews as we know them would cease to be and no noteworthy person would ever be able to express an opinion or answer questions for a living again. All creativity in the area of interviews would cease and we'd still be reliving the Lincoln Douglas debate every day since no new thoughts or opinions could be fruitfully recorded or questions answered. THERE WOULD BE CELEBRITIES DYING IN THE GUTTER OF STARVATION, THEIR CHILDREN SHOELESS AND FLEA-RIDDEN. DO YOU WANT THAT?!

What

What is the basis of this statement?

"starting with the fact that the person being interviewed very rarely holds a copyright in the words they said"

That is the exact opposite of the situation. If the person being interviewed doesn't sign a release before the interview or an assignment after the interview the person being interviewed retains ownership of the copyright in what they have said. Given that, upon the death of the person who retained copyright absent a will that says otherwise that copyright goes to the widow.

Also it is irrelevant if the widow "rushes" to register the copyright she owns the copyright whether it's registered or not

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That is the exact opposite of the situation. If the person being interviewed doesn't sign a release before the interview or an assignment after the interview the person being interviewed retains ownership of the copyright in what they have said.

Yeah, I'm almost positive that's dead wrong. By that logic if someone takes a picture of someone else the person who's picture was taken would have the copyright unless they signed the rights to it away, when in fact it's the other way around, and I can't imagine it's that different for stuff like interviews.

Also it is irrelevant if the widow "rushes" to register the copyright she owns the copyright whether it's registered or not

It's very relevant actually, massively so you might say.

With registration you don't actually have to prove damages to be awarded fines if you win in court, you can simply claim the 'statutory damages', which can reach up to $150,000 per work. Multiple interviews, multiply by $150K each...

Without registration however you can only sue for actual damages, which require you to demonstrate harm if you want to get anything, you can't just assert harm and expect to get a hefty paycheck.

What

You are correct that you might be able to get statutory damages with timely registered copyright. There's no guarantee that a plaintiff will get statutory damages.

I must assume that the real reason the widow rushed to file registration is that registration is a requirement to bring a copyright infringement lawsuit

You say you can't imagine an interview being much different than taking someone's picture. I'm not sure but I believe photographers and film makers get a person to sign a release before using any picture for commercial purposes. The legal basis may not be copyright law but the photographer knows they need an authorized photo if they want to exploit the photo commercially.

Now I'm not saying that the plaintiff here is not using copyright to censor someone, which I believe is the main point of the article, I just want to point out that if you ask someone to tell you a story you don't own that story simply because you asked the question you have to get the person being interviewed to authorize the fixation of those words and agree to transfer the copyright if the interviewer does not the interviewer can claim copyright only in their questions that's it

Still would like to know where the author of this article got the idea that the interviewer owns what the interviewee says. Just asking

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It helps if you use the 'Reply to this' link below the comment you're replying to, makes keeping track of conversations easier.

I must assume that the real reason the widow rushed to file registration is that registration is a requirement to bring a copyright infringement lawsuit

Registration isn't a requirement to bring a lawsuit for copyright infringement, it's just the requirement to be able to avail yourself of statutory damages, rather than being limited to actual damages if you win.

(It might have been a requirement to sue for copyright infringement when you actually had to register to get a copyright, since I believe you didn't actually have a copyright before registration under that system, but once copyright became the default it definitely wasn't.)

The legal basis may not be copyright law but the photographer knows they need an authorized photo if they want to exploit the photo commercially.

Outside of states with the absurdity known as 'Publicity rights' I'm almost positive that no, you don't. Commercial or not doesn't matter, the person who took the photo owns the copyright unless they've signed away the rights to it, and as such can do what they want with it.

Imagine the insanity of trying to use a picture of a crowd(downtown of a large city during noon for example) commercially if you had to get the permission from every single person in the photo first. 'Natural' photo of cityscapes would be for all intents and purposes impossible, and simply couldn't exist, being far too legally risky.

Now I'm not saying that the plaintiff here is not using copyright to censor someone, which I believe is the main point of the article, I just want to point out that if you ask someone to tell you a story you don't own that story simply because you asked the question you have to get the person being interviewed to authorize the fixation of those words and agree to transfer the copyright if the interviewer does not the interviewer can claim copyright only in their questions that's it

You don't have to 'own' the story to be able to record it and play it back to others. If you own the copyright to a story(say you wrote it down somewhere and you have the copyright over that) and tell me parts or even all of it and I record you doing so, as while you may own the copyright to the story in question I would own the copyright to the recording, and can do what I want with it, despite the fact that I don't own the copyright to the story itself.

The alternative would allow something along the lines of Person A telling Person B a story or a joke, and being able to legally prohibit them from telling the story/joke to someone else, which would be just a tad ridiculous.

Still would like to know where the author of this article got the idea that the interviewer owns what the interviewee says. Just asking

Because the copyright goes to the person who creates the content, not necessarily the person who provides parts of it. Like the photography example I've used the person making the recording or writing up the transcript for the interview has the copyright over the end result, rather than the person being interviewed.

It's like if I stopped someone on the street and asked them a few question, recording the answers they give either on paper or digitally; while they may be speaking I'm the one creating the recording, and as such I, not them, own the copyright over said recording.

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Registration is a requirement to bring a Federal copyright lawsuit and get the Federal statutory damages

The photographing someone issue is based on right of publicity which is a whole different area of law so let's leave that discussion for another time and place

Now on to recording someone else's work. Yes you may record someone else's story by writing down what they say. However just because you wrote it down doesn't mean you created it. If you don't get the authorization to make copies of the story the person told you then you are infringing that persons copyright in their story

Here's an analogy. If you record someone performing a song they wrote you may have a copyright in the sound recording you created but if you don't get authorization to make distribute copies of your sound recording then your are infringing the song writers copyright in that song.

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While copyright is so insane and screwed up that I wouldn't be surprised if what you say was true(disgusted to be sure, but not surprised), my gut feeling is that copyright isn't quite that insane on that particular aspect, given how widely such a loophole would be abused and how often you'd hear stories of such happening. However without evidence either way I couldn't say for sure.

IT'S NOT ALL ABOUT GENE

I wish someone could sit Patricia and Marshall down... and with your script here!... and sort out this mess for the benefit of both Patricia, and Ms Marshall!... and us!.I don't necessarily blame Patricia!... as I believe she's been "counselled" to "REACT" to potential threats of infringement, by her "advisors"! Nevertheless!... I view Patricia's "counselled response" rather strange!... and inasmuch, as I don't view some author's INITIATED INTERVIEW with Gene (or with anyone else, for that matter!) necessarily the "property" of Gene Kelly (and despite his celebrity!)!.To close... if Gene VOLUNTEERED his time to be interviewed by someone-- let's say, by a noted author!-- why is the interview all about Gene, and not (for example!) about the "noted author (at least, in part!)"? Now... if Gene had said at the outset, that this interview (or that interview!) was ALL ABOUT HIM!... and, he is claiming a "Right" to the interview being conducted!... then maybe the "interviewer"-- then, and there!-- might "rethink" whether doing the interview, would be worth the time and effort! .If Andy Warhol-- for example!-- takes a photo of Gene Kelly (a type of "interview"!... if you will!), doesn't Andy get to claim some "Artistic Right" in any attempt to sell his photo (God rest his soul!)!.And so... it's not all about Gene!... and Patricia would be "better counselled", in acknowledging that! .And you're correct!... we're potentially missing out on some important stuff here! And Patricia (and her "counsel"!) should realize, that some creative... and caring souls!... have spent their time, and efforts, in acquiring some TRUE INSIGHTS into the life of this most remarkable human being!... and the which, we might-- otherwise!-- not have received! And... honestly!... that deserves something! And what Patricia has to sit down and think about (with a clear mind!... and with a sensitive heart!), is whether Kelli Marshall is merely a "celebrity leech", or, whether Ms Marshall is an honest, and concerned WOULD-BE HISTORIAN of the life and times of one of the world's best entertainers! And!... and if after having examined the efforts of Ms Marshall!... if Ms Marshall would appear to Patricia to have offered the world a "refreshing glimpse" into the world of Gene Kelly, then Patricia should then ask herself:... "Is this literary effort, worthy of a 'return'... in, and of itself?" And if her answer is YES!... then Patricia should do what Gene Kelly would have her do!... and that is, to cut Ms Marshall a little slack!... and!... A DEAL!.Please!... no emails!

Shameless Censorship

What a pity that some people covet fame and want to live through the fame of another. Patricia Ward Kelly has stopped one book and another may not be finished that was going to come out in May.

The great talent of Gene Kelly should be celebrated and not held selfishly for personal gain by one person. I don't understand the attitude of Ms Kelly wanting to quash anything that doesn't have her name on it. Is she worried about her legacy or Gene's?